On January 24, 2018 the Appellate Division, Second Department affirmed in part, and reversed in part, a trial court order granting Defendant, Bay Ridge Methodist’s counterclaim that certain cladding and a drip edge (a system used to deflect water) installed by the Plaintiff, David S. Kimball, along a party wall shared by the parties constituted a trespass.  See, Kimball v. Bay Ridge United Methodist Church, 2017-03575, Jan. 24, 2018.

In upholding the trespass, the Court stated that Kimball “failed to raise a triable issue of fact regarding whether the cladding and drip edge encroached onto the [Church’s} property.”  As such, the trial court’s trespass finding against Kimball, in favor of the Church, was upheld. However, the trial court’s finding that the trespass must be removed was reversed.

In reversing, the Court stated that “RPAPL 871(1) provides that an ‘action may be maintained by the owner of any legal estate in land for an injunction directing the removal of a structure encroaching on such land.  Nothing herein contained shall be construed as limiting the power of the court in such an action to award damages in an appropriate case in lieu of an injunction or to render such other judgments as the facts may justify.'” (emphasis added)

Finding that the Church failed to demonstrate the absence of any triable issues of fact concerning whether the balance of equities weighed in its favor, the Appellate Division vacated the injunction directing Kimball to remove the cladding and drip edge from the shared wall holding that “[i]n order to obtain injunctive relief pursuant to RPAPL 871(1), a party is ‘required to demonstrate not only the existence of [an] encroachment, but that the benefit to be gained by compelling its removal would outweigh the harm that world result.”

Consequently, since the Church did not prove that the benefit gained by the Church in compelling Kimball to remove the cladding and drip edge would outweigh the harm that would result to Kimball if removed, the Court remitted the matter back to the Supreme Court, Kings County for further proceedings.

Under RPAPL 871(1), and upon the trespass finding, the party trespassed upon became the party with the burden to prove that the benefit of removal of the trespass outweighed the harm to the trespassing party.  It is not enough for injunctive relief that a trespass exists.  The trespassed upon party is tasked with the burden to prove that its damages outweigh those damages that the trespassing party may incur upon removal.

It is interesting to note that, RPAPL 871(2) specifically states that “[t]his section shall not be deemed to repeal or modify any existing statute or local law relating to encroaching structures.”  It would be interesting to know whether a common law trespass claim was asserted in this action, or whether another statute or local law was available that could have resulted in a different and more favorable outcome for the Church.

At its December 5, 2017 meeting, the Town Board of the Town of Southold (“Town Board”) was hit with a tidal wave of opposition to changes the Board was considering to the Town’s Zoning Code with respect to wineries. The proposed changes would have modified §280-13A(4) and §280-13C(10) of the Town Zoning Code. After a five-hour public hearing, the Town Board unanimously withdrew the proposal.

Opponents of the proposal used social media to get the word out about the public hearing, and Town Hall was packed with these folks on the hearing date. Perhaps the Town Board should have taken a cue from that and used social media, including the Town’s website, to explain in advance why they were proposing these changes, who would be affected, and encouraging residents who supported the proposal to attend the public hearing.

The proposed changes were aimed at five zoning districts; namely the Agricultural-Conservation District, Residential Low-Density District R-80, Residential Low-Density District R-120, Residential Low-Density District R-200, and Residential Low-Density District R-400. These proposed changes were not applicable to other zoning districts where wineries are also permitted, such as the Limited Business District.

The existing provisions of §280-13A set forth the permitted uses in these five zoning districts. Subsection 4 applies to wineries and lists the standards applicable to that use in these districts. These include: (a) the winery must “be a place or premises on which wine made from primarily Long Island grapes is produced and sold;” (b) the winery must “be on a parcel on which at least 10 acres are devoted to vineyard or other agricultural purposes, and which is owned by the winery owner;” (c) the winery structures are required to “be set back a minimum of 100 feet from a major road;” and (d) the winery needs to have site plan approval.

The proposed changes to §280-13A would have required: (a) that the wine be “produced, processed and sold” at the winery, which wine had to be made from grapes “of which at least 80% are grown on the premises or other land owned by the winery owner;” (b) the winery must be on a parcel where a minimum of “10 acres are devoted to the growing of wine grapes” and which is owned by the winery owner;” and (c) the 10 acres devoted to growing grapes are in addition to land on which structures are located. No changes to the set back and site plan approval provisions were proposed.

The existing provisions of §280-13C set forth the accessory uses. Subsection 10 applies to wineries. That subsection states that a winery “may have an accessory gift shop on the premises which may sell items accessory to wine, such as corkscrews, wine glasses, decanters, items for the storage and display of wine, books on winemaking and the region and nonspecific items bearing the insignia of the winery.” The subsection also states that a winery “may not have a commercial kitchen as an accessory use but may have a noncommercial kitchen facility for private use by the employees.”

The proposed changes to §280-13C(10) changed the “accessory gift shop” to a “retail gift shop” with the same limitation on the type of merchandise that could be offered. In addition, the proposed changes required that the wine be made on the parcel and permitted 20% of the wine sold at a winery to be from other Long Island wineries. No change was made to the kitchen limitations.

The packed house of opponents described the proposal as “anti-farming” or “overly restrictive.” Farmers who grow grapes for sale to wineries they do not own claimed that the proposal would put them out of business. Some opponents stated that the proposal would be the death-knell to new wineries, which would be unable to make any money while their vines matured over several growing seasons. Others were concerned that natural disasters could wipe out a portion of their crops, and that if they bought grapes elsewhere to replace their damaged crops, they would be in violation of the proposed changes.

The Town Supervisor indicated that the Town Board would go back to the drawing board and reconsider the proposal. Whether the Town Board can come up with a proposal that will not be met with similar opposition is uncertain.

By letter dated November 24, 2009, the Town of Riverhead’s Building Department Administrator provided that the docks, bulkheaded structures, commercial oyster operation, and six summer rental cottages were legal pre-existing nonconforming uses of the property at 28 Whites Lane, on Reeves Creek, Aquebogue NY (“subject property”). The subject property is owned by John and Sandra Reeves, hereinafter the “Respondents”. The Petitioners, neighbors of the subject property, appealed this determination to the Zoning Board of Appeals (“ZBA”) which rendered a decision sustaining the November 24, 2009 letter. The Petitioners challenged the ZBA’s determination in an article 78 proceeding, Matter of Andes v. Zoning Board of Appeals of the Town of Riverhead, John Reeve et al. Supreme Court, Suffolk Co. Index No. 10-27305, April 8, 2013. The Supreme Court annulled the ZBA’s decision and remitted the matter back to the ZBA citing that the ZBA decision “contained no independent factual findings supporting this determination.”

The ZBA reheard the matter on June 23, 2016. By decision dated August 11, 2016, the ZBA again sustained the November 24, 2009 letter as to the pre-existing nonconforming uses on the property. This time, however, the ZBA’s record was replete with factual findings in support of its determination.

The Town of Riverhead first adopted its zoning code in 1959. Several zoning amendments were made throughout the years, rendering the different uses of the subject property nonconforming at different times. [1]    The ZBA considered testimony from numerous sources establishing the continuing pre-existing nonconforming uses and structures on the subject property. For example, with regard to the shellfish operation, Robert E. White, the son of Washington White, testified at the July 23, 2009 ZBA hearing that his family purchased the property in the 1930’s and that it was used for a shellfish operation which was continued by his brother Benjamin White. He further submitted that the “underwater property” was purchased by the Lessard family in the 1990’s who “continued the operation.” David Lessard testified that he continued the commercial shellfish operation to the present day.  The ZBA made further findings, sustained in part by similar testimonial evidence, supporting the pre-existing nonconforming summer cottages and marina uses.  Ultimately, the ZBA upheld the November 24, 2009 Building Department Administrator letter once again.

The neighbors challenged this ZBA determination in a second article 78 proceeding entitled Matter of Andes v. Zoning Board of Appeal of Town of Riverhead et al., Sup. Ct. Suffolk Co., Index No. 16-8742, December 15, 2017.

Petitioners argued that (i) the Respondents failed to provide business records to corroborate the continuance of the marina or commercial oyster operation, (ii) the commercial oyster operation was run without the proper shell-fishing permits, (iii) the marina structures were not completed until 2008, and (iv) the basin where the shellfish operation took place had non-functional bulkheading and required dredging to be operational during the time periods they were claimed to be in use, among others. Notably, Petitioners alleged that the majority of the evidence relied upon by the ZBA was based on the testimony of Respondents, the Reeves, and their primary witnesses who Petitioners argued were “town insiders” since they worked for the Town of Riverhead.

The Court reviewed the evidence considered and findings made by the ZBA in its decision and held that the ZBA decision was rational and not arbitrary and capricious. The Court set forth the standard of review for pre-existing nonconforming uses and restated the long-standing legal principle that a court cannot substitute its judgment for that of the board. Petitioners clearly wanted the Court to weigh the value of the evidence relied upon by the ZBA; however, the Court stated:

Here, it cannot be said that the Zoning Board’s decision lacks evidentiary support in the record; that the nature of the evidence relied on by the Zoning Board is almost entirely testimonial is of no consequence for purposes of this analysis (see Town of Ithaca v Hull, 174 AD2d 911,571 NYS2d 609 [1991]). Likewise, while the court is sensitive to the implication of the petitioners’ claim that the Zoning Board discredited their proof in favor of the affidavits and hearing testimony of “insiders,” i.e., the Reeves and “their friends,” it remains constrained by the limited scope of review afforded in article 78 proceedings, particularly absent proof of actual bias or favoritism. The court also rejects the petitioners’ implicit claim that judicial review of a zoning board’s determination requires some kind of comparative analysis of the quality and quantity of the evidence adduced in support of and in opposition to an application. A court may not weigh the evidence or reject the choice made by the board where the evidence is conflicting and room for choice exists (Matter of Toys “R” Us v Silva, supra). Even to the extent it has been held that a board’s determination must be supported by “substantial evidence,” a court need only decide whether the record contains sufficient evidence to support the rationality of the board’s determination (Matter of Sasso v Osgood, 86 NY2d 374,633 NYS2d 259 r1995J; Matter of Slonim v Town of E. Hampton Zoning Bd. of Appeals, 119 AD3d 699, 988 NYS2d 890 [2014]. lv denied 26 NY3d 915, 23 NYS3d 641 [2015]) (emphasis added).

 As to the petitioners’ claim that the Reeves failed to sustain their “high” burden of persuasion, the court notes that this standard applies only to a matter before a municipal officer or board and not to a judicial proceeding; it bears repeating that the scope of judicial review of a zoning board’s determination is limited to an examination of whether the determination has a rational basis, even when that determination involves an application to establish or certify a prior conforming use (e.g. Matter of Keller v Haller supra; Matter of Watral v Scheyer, 223 AD2d 711, 637 NYS2d 431 [1996]). Whether, as the petitioners further contend, the Reeves lacked the necessary permits, certificates, and approvals to operate a marina on the property until the new docks and bulkheading were constructed and completed in 2008, or whether the Lessards did not have shellfish diggers permits from 1994 through 1997 so they could not have lawfully been using the Reeves’ property for that purpose during that time, is largely irrelevant.

Ultimately, the Court upheld the ZBAs determination affirming the Building Department Administrator’s letter; the petition was denied and the proceeding dismissed. Given that the matter has been an issue before the Town of Riverhead since 2003 and the Court since 2010, it is not surprising that Petitioners filed a notice of appeal.


[1] In 1959 with the first enactment of zoning, Riverhead Town rendered the commercial oyster operation on the property a preexisting nonconforming use. The six cottages became pre-existing nonconforming in September 1970 when the Town of Riverhead amended the zoning code definition of Marina Resort to exclude summer cottages. In 2004, the Town re-zoned the property to RB-40, eliminating marinas as permitted uses rendering the marina use, docks and bulkheading on-site nonconforming. Additionally, Riverhead Town Code §301-222(C) provides that a nonconforming use may not be reestablished “where such nonconforming use has been discontinued for a period of one year.”

In 2014, the New York State Legislature enacted a significant amendment to the Environmental Conservation Law (ECL) reducing setbacks required to discharge a long bow in the lawful act of hunting from 500 feet to 150 feet from occupied buildings and public places.  ECL11-0931(2).  This created a ripple effect in many Long Island municipalities that previously codified the State’s regulation of 500-feet.  For example, the Town of Smithtown still maintains a local law requiring a 500-foot setback, which now conflicts with the State’s 2014 150-foot setback requirement.

The question now becomes whether New York’s preemption doctrine prevents municipalities from maintaining local laws conflicting with State law.  In this case, can the Town of Smithtown maintain its 500-foot setback for the discharge of a long bow as opposed to the State’s 150-foot setback?

Some would say that the State occupies the field of hunting, because it declared title to the wildlife in its sovereign capacity for the benefit of all the people (ECL 11-0105). Consequently, hunting the State’s wildlife is regulated by the New York State Department of Environmental Conservation (NYSDEC) ECL Title 7.

However, the State also provided municipalities broad latitude to regulate themselves through the Municipal Home Rule Law (MHR).  MHR confers on local governments the authority to adopt laws for, among other things, the protection of health, safety and welfare, to the extent they are not inconsistent with either the State Constitution or any other State law. MHR 10(1)(ii).

In DJI Restaurant v City of New York , the Court of Appeals explained the two ways State law preempts local laws as follows: (1) where an express conflict exists between State and local law (conflict preemption) and (2) where the State has evidenced its intent to occupy the field (field preemption).

Field preemption exists when a local law regulating the same subject matter is deemed inconsistent with the State law.  In this situation, the local law must yield, because it thwarts the State’s overriding policy for State-wide uniformity. See, Matter of Chwick v. Mulvey, (state law regarding firearm licenses preempted a Nassau County ordinance against “deceptively colored” handguns where comprehensive regulations by the State demonstrate the Legislature’s intent to occupy the field”).

Presently, New York has not expressly preempted the regulation of hunting; and there does not appear to be any case directly on point for conflict preemption.  However, the State’s intent to “occupy the field” of hunting appears evidenced by comprehensive ECL statutes, the framework of NYSDEC regulations and strict licensing requirements. See, ECL Title 11.

Moreover,  given the purpose and scope of the State’s legislative scheme, including the need for statewide uniformity, the State need not expressly state that it is preempting local municipalities in the area of hunting. See generally, Albany Area Blders v. Town of Guiderland,  However, in the case of Smithtown, it appears the State may have to take a more explicit position or risk the balkanization of hunting regulations on Long Island and possibly other parts of the State.  This seems particularly counterintuitive when dealing with the State’s wildlife.

On January 18,  2018, the Appellate Division, Second Department, upheld a decision denying an application for a religious real property tax exemption on the grounds that the property owner’s use of the main structure as a dormitory and living quarters for 20 students ran contrary to the one family dwelling Certificate of Occupancy issued for the premises and thus violated the Town of Ramapo’s zoning laws.  See, Congregation Ateres Yisroel v Town of Ramapo, 2014-09194.  

In Congregation Ateres Yisroel, plaintiff claimed and received a religious real property tax exemption for the years 2008-2011.  In 2012, plaintiff sought to renew its religious tax exemption by submitting a renewal application stating that no changes had been made to the property’s ownership or use from 2011 to 2012.    The Town denied the request on the grounds that plaintiff erected two trailers on the premises without seeking permits or approvals and that plaintiff used the main structure to house 20 students in dormitory style living quarters all in contravention to a 1954 Certificate of Occupancy stating the premises is certified as a “one family dwelling.”

Without any discussion or analysis of whether the students being housed at the property were engaged in conduct of a religious nature, the Second Department, agreed with the trial court that use of the premises for dormitory style living contravenes the “one family dwelling” Certificate of Occupancy and as a result, denial of the religious real property tax exemption was upheld.

Now, this decision is not particularly shocking or even interesting for that matter.  However, this decision caught my attention because not long ago, we published a blog post entitled “Court Supports an Expansive View of What Constitutes a Religious Use.”  In that post, the Third Department reinstated a decision of the City of Albany’s Zoning Board holding that a church’s partnership with a not-for-profit entity to house 14 homeless individuals at the church parsonage was a permissible use for a house of worship.  The Court agreed that assisting the homeless is consistent with the mission and actions of a house of worship.   See, Matter of Sullivan v Board of Zoning Appeals of City of Albany.

Although Sullivan did not involve a real property tax exemption, it is quite likely that the house of worship in the Sullivan case continues to receive a religious real property tax exemption despite the fact that the church is housing 14 homeless people in a single family zoning district.  To the contrary, Congregation Ateres Yisroel’s lost its religious real property tax exemption based on its use of its premises to house 20 students.  Both religious uses are in single family zoning districts, and both religious uses are housing multiple people.

The question perhaps becomes – Why is sheltering the homeless more in line with a religious purpose than housing 20 students?  The facts in Congregation Ateres Yisroel are silent as to why the students were being housed at the property and whether their housing was in furtherance of a religious purpose.  If Congregation Ateres Yisroel could establish that the student housing had some connection to its religious purpose, perhaps the result of this case would be different.    At a minimum, we may have a possible split in the Departments as to what types of uses constitute “religious uses” and where and how do we draw the line?   Perhaps our next update on this topic will be the result of a decision by our State’s highest court.  Tune in each Monday for the latest news.

A fierce legal battle is currently being waged between preservationists and the City of New York (“City”) over a parcel of land in Manhattan’s Upper East Side, known as Marx Brothers Playground.  The parcel, which is located between 96th and 97th Streets on Second Avenue, is named after legendary comics Groucho, Harpo, Chico, Gummo and Zeppo Marx, who were raised at nearby 179 East 93rd Street.  The 1.5-acre public recreation area was created in 1947, and currently contains soccer and baseball fields.  The portion of the site where the playground was located is temporarily being used by the Metropolitan Transit Authority as a staging area for the construction of the Second Avenue Subway.  The entire site is slated for redevelopment by a private developer, who plans to construct a high-rise, mixed-use building containing more than 1,200 apartments, three schools and commercial space.

Although City Parks Department’s leaf logo adorns the site, the property is officially classified as a “jointly operated playground” or “JOP” because it was established under the joint jurisdiction of both the Parks Department and Department of Education, which operates an adjacent vocational high school.  Typically, a JOP is used by the students of the adjacent school during the school day, and the general public outside of school hours.

In an effort to stop the proposed project, preservationists recently commenced an Article 78 proceeding, entitled Carnegie Hill Neighbors, Inc. v. City of New York (Index No. 161375/20017). The preservationists claim, among other things, that Marx Brothers Playground is parkland and, as such, cannot be conveyed by the City to a private developer without State legislation authorizing the termination of its use as a park and its transfer from the City.  Other opponents of the project fear that the redevelopment of the playground will create a slippery slope that will lead to private developers targeting other City-owned recreation facilities.  City officials, on the other hand, insist that the space is a playground, as its name suggests, and not parkland.  They also point out that the City plans to relocate and replace the playground elsewhere on the block.

What appears to be a minor matter of semantics is actually crucial to the outcome of the dispute.  That is because under the State’s public trust doctrine, parks cannot be “alienated” or used for an extended period for non-park purposes without State legislative approval.  The City claims that there is no similar requirement for playgrounds.  A parcel of land may constitute parkland either by express dedication, such as by deed or legislative enactment, or by implied dedication, such as by a continuous use of the property as a public park or recreation area.  Once land is dedicated to parkland use, the dedication is irrevocable absent specific State legislative approval.

The public trust doctrine can trace its roots to the nearly century-old case of Williams v. Gallatin, 229 NY 248 (1920), when a taxpayer sought to enjoin the City’s Commissioner of Parks from leasing the Central Park Arsenal Building to the Safety Institute of America, arguing that the transaction was “foreign to park purposes.” In prohibiting the lease, the Court of Appeals found that a park was a recreational pleasure area set aside to promote public health and welfare and, as such, “no objects, however worthy…which have no connection with park purposes, should be permitted to encroach upon [parkland] without legislative authority plainly conferred.” The Court stated that the legislative will was that Central Park “should be kept open as a public park ought to be and not be turned over by the commissioner of parks to other uses. It must be kept free from intrusion of every kind which would interfere in any degree with its complete use for this end.”

Prior to the filing of the lawsuit, the City Council and State Legislature had apparently determined that Marx Brothers Playground was, in fact, parkland, because the City Council submitted a “Home Rule Request” to the State Legislature seeking authority to “alienate” or discontinue its use as parkland.  The Legislature quickly acted on the request and passed bills (A. 8419/S. 6721) entitled “[a]n Act in relation to authorizing discontinuance of the use as parkland of the land in the City of New York commonly known as the Marx Brothers Playground.”  Opponents of the City’s plan appealed to the Governor to veto the legislation.  Governor Cuomo eventually signed the legislation, but he attached a “chapter amendment” in the form of a memorandum that ordered Rose Harvey, Commissioner of the State Department of Parks, Recreation, and Historic Preservation, to “investigate all of the property’s historical records, uses, and any other factor relevant to the land’s designation.”

As a result of this unusual move by the Governor, the City must now wait for Commissioner Harvey’s assessment before it can proceed with its plans.  It will also have to wait for the pending lawsuit to play out in the Supreme Court.

It is well established that zoning codes and regulations are in derogation of property owners’ rights in and to the use of their property. Zoning restricts the use of land which was otherwise free of restrictions.  An owner’s rights in use of land are among the oldest and enjoy the most protection under common law and state and federal constitutions. Therefore, the courts of New York have regularly and consistently held that (1) any such codes and regulations must be strictly construed and (2) any ambiguity must be construed against the municipality and in favor of the property owner:

“Since zoning regulations are in derogation of the common law, they must be strictly construed against the municipality which has enacted and seeks to enforce them. Any ambiguity in the language used in such regulations must be resolved in favor of the property owner.”

Because of the heightened scrutiny of zoning regulations for ambiguity, they are difficult to draft and often subject to litigation – which can get deep into the weeds of statutory construction and even grammar. For example, where a zoning code required site plan review for “any new construction or any addition thereto in excess of 2000 sq. ft.,” the Zoning Board found that the limitation of 2,000 sq. ft. applied only to “any addition” and not to “any new construction.” The Third Department reversed, in part because there was no comma between “thereto” and “in excess of.” Your high school English (or Latin) teacher would rejoice at the deconstructive analysis.

Other examples: Does prohibition of car storage prohibit a parking garage, where there is no definition of “storage” in the code? (Answer = No; parking garage is OK) Is a code validly applied which does not allow an owner to “store” a boat in the front yard, where there is, again, no definition of how long a boat must be in the front yard to be deemed to be “stored” there? (Answer = Code not valid because of ambiguity.) Can a code require building permits for all construction “other than ordinary repairs that are not structural?” (Answer = No; code invalidly applied because there was no definition of what constitutes “ordinary” or “not structural” repairs.) Is a helicopter pad an “airport” which is defined as a landing area that is used “regularly?” (Answer = Yes; it was used frequently enough to be deemed “regular.”)

A recent code amendment in an East End municipality requires that driveway gates must have a “setback to the street” of no less than 20 feet or 40 feet (depending on lot size). What is the “street?” The paved roadway? The lot line dividing the private property from the municipality’s right-of-way for the road? The difference could be 10 or 15 feet or more of unpaved verge or shoulder between the pavement and the lot line.

The difficulty in drafting is highlighted by these cases which pit the purportedly “obvious” reading of the code against the rule of strict construction – resolving any ambiguity in favor of the property owner. The burden on the municipality is especially acute where municipal officials come up with different interpretations. The statute is certainly vague and ambiguous when reasonable municipal minds differ – when “reasonable enforcement officers could come to different conclusions” – and they actually did.

Moreover, the New York courts have rejected the argument that Zoning Boards have the authority to remove the ambiguity by choosing the interpretation that the Board prefers. Rather, the courts recognize that while a board’s interpretation is entitled to deference in most situations, where the statute is ambiguous the question becomes a matter of law and the usual deference does not apply.

In a recent Zoning Board case, the same beneficial owners had a residence on one lot and a tennis court, without a home, on another immediately adjacent lot. There was no dispute that the tennis court was a valid subordinate use to the adjacent residence. However, the municipality would not approve a certificate of occupancy for the tennis court because there was no residence on the court property. There was no direct prohibition in the zoning code of an accessory use on a lot without a principal use. The municipality relied solely and entirely on the code’s definition of accessory use as:

“A subordinate use, building or structure customarily incidental to and located on the same lot occupied by the main use, building or structure. The term . . .”accessory structure” may include a . . . tennis court. . . .” (Emphasis added)

The owners sought relief in two separate ways. First, they argued for an interpretation that the code did not require that the tennis court and the dwelling be on the same lot because the word “customarily” modified both “incidental to” and “located on the same lot.” Therefore, an accessory structure is defined as only customarily located on the same lot as the main use. “Customarily” does not mean “always” or “required.” At the very least, the code was ambiguous on this point and, they argued, could not be used by the municipality to deny the owners the right to maintain the tennis court on the lot by itself.

The owners also sought a variance to allow the stand-alone tennis court in the event that the Zoning Board rejected their ambiguity argument. The Zoning Board rejected the argument that the ambiguity of the code section made it unenforceable, finding that they had regularly interpreted the code against the owners’ position. However, the Zoning Board granted the variance allowing the tennis court to exist without a main use on the same lot. A court might have overturned the Board’s contention that it had the right to interpret the ambiguous language in favor of the municipality, since that issue is a matter of law and the interpretation must be in favor of the property owner. But the bottom line is that the applicants got their tennis court and probably don’t care that it was by variance and not by voiding or interpreting an ambiguous code provision – and an Article 78 was averted.

And therein lies the point of this blog: The “ambiguity” rule can be difficult for applicants because courts can, and do, find that the code is not so ambiguous after all. On the other hand, zoning and planning Boards – and, especially, their counsel – know that the “ambiguity” rule is deep-rooted in New York law and that the courts do not hesitate to apply the rule as a matter of law, without deference to the boards. The bottom line is that making a legitimate “ambiguity rule” argument at the municipal board level can be successful in itself, but it is perhaps most important as a prod to the board to grant a variance or site plan or other municipal approval.

A not-so-clear code provision can be very helpful in obtaining a municipal approval!

 

 

 

 

On December 12, 2017, the New York State Court of Appeals issued a joint decision on the appeal of two Article 78 proceedings challenging the same proposed development. The two appeals, Friends of P.S. 163 v Jewish Home Lifecare and New York State Department of Health and Wright v New York State Department of Health, sought to annul a decision of the New York State Department of Health (NYSDOH), approving the construction of a 414-bed residential facility for elderly and disabled individuals on the Upper West Side of Manhattan.  The NYSDOH was designated as the lead agency under the State Environmental Quality Review Act (“SEQRA”).   One set of petitioners were the parents of children attending a public elementary school located next door to the facility’s proposed location. The other set of petitioners were tenants living in apartment buildings that surround the facility’s proposed location.

Petitioners complained that the NYSDOH’s SEQRA review was procedurally and substantively flawed and did not adequately address the risks of exposure to hazardous materials, in particular, lead-contaminated soil and airborne lead, as well as exposure to construction noise. In affirming the Appellate Division, which had reversed the decision of the Supreme Court, the Court of Appeals dismissed both challenges and upheld the NYSDOH’s decision.

The Court of Appeals went through an extensive analysis of what the NYSDOH did prior to issuing its SEQRA Findings Statement. This included: (1) a Phase I environmental site assessment that did not identify any recognized environmental conditions; (2) a Phase II environmental site assessment that included 38 soil samples taken from areas within the footprint of the proposed facility and nearby locations outside the footprint and also included groundwater samples; (3) scoping for the draft environmental impact statement (DEIS); (4) preparation of the DEIS; (5) two public hearings on the DEIS; (6) preparation and filing of the final environmental impact statement (FEIS); and (7) preparation and adoption of the SEQRA Findings Statement.

The Court of Appeals noted that the sampling detected levels of lead in the soil that were typical of sites containing urban fill and were below the restricted residential soil cleanup objectives used by the New York State Department of Environmental Conservation. In addition, the NYSDOH determined that certain mitigative measures would be required to handle, monitor and contain the lead-contaminated soil during construction. As to potential levels of airborne lead dust, the NYSDOH determined that using certain monitoring and mitigation measures during construction would ensure that concentrations of airborne lead dust would not exceed the national ambient air quality standards. As to noise, the NYSDOH conducted modeling to assess potential impacts and assess abatement techniques to control noise. It also relied upon New York City’s Environmental Quality Review Technical Manual to minimize the exceedance of certain decibel limits during construction.

Some of the mitigation measures imposed by the NYSDOH in its SEQRA Findings Statement for the lead-contaminated soil included: (1) extensive construction health and safety plans; (2) a remedial action plan; (3) requiring tarps on trucks; (4) requiring wetting soil during excavation and loading onto the trucks; (5) requiring proper off-site disposal of the soil; (6) vehicle inspections; (7) real-time monitoring of dust levels; and (8) requiring soil vapor barriers for the cellar and sidewalls of the new facility.  The noise-related impacts would be controlled by: (1) ten-foot sound barriers, which would be increased to sixteen feet for classrooms closest to the construction; (2) interior acoustic windows in classrooms facing the construction site; (3) window air conditioning units for certain classrooms; and (4) prohibiting noisy construction activities during the school’s annual testing periods.

In their Article 78 proceedings, petitioners contended that the NYSDOH used flawed assessment methodologies, relied upon outdated standards, failed to adequately mitigate environmental damage of the proposed construction, and failed to adequately consider alternative mitigation measures. In particular, petitioners asserted that the developer should have been required to install central air conditioning in the school and tent the excavation.

Petitioners initially prevailed, getting the Supreme Court to annul and vacate the NYSDOH approval. That was a short-lived victory, as the Appellate Division reversed and dismissed the two proceedings, finding that the trial court has inappropriately substituted its judgment for the expertize of the NYSDOH. The Appellate Division granted leave to appeal and the Court of Appeals affirmed the appellate court.

The Court of Appeals noted that the court’s role in reviewing the lead agency’s decision under SEQRA is limited to determining whether the decision was made in accordance with lawful procedure, and whether substantively the decision was affected by an error of law, was arbitrary and capricious or an abuse of discretion. The Court of Appeals further noted that a reviewing court is not supposed to weigh the desirability of the action or choose among the alternatives.   Rather, it is limited to determining whether the agency took a “hard look” at relevant areas of environmental concern and made a “reasoned elaboration” for the grounds of its decision. Using those standards, the Court of Appeals found that the NYSDOH had relied upon the appropriate standards, had carefully considered the potential environmental harm and acted within its authority in choosing among the alternatives, further noting the wide latitude given to agencies in conducting SEQRA reviews.

Last week we wrote about a United States Supreme Court case Murr v. Wisconsin and its impact locally. Since that post, the Petitioner, Donna Murr, contacted the author to provide us with an update to her family’s situation.

After the Supreme Court decision in June, legislation was introduced in both the Wisconsin State Senate and the Wisconsin State Assembly. This legislation – among other things – sought to prohibit a state, county, town or village agency from merging a substandard lot with another lot without the consent of the affected property owner.

We are pleased to report that the Wisconsin State Assembly and Senate both passed the legislation in early November, and on November 27, 2017 Governor Scott Walker – with Donna Murr by his side – signed the bill into law. As a result, the Murr’s lots can be developed separately. As Ms. Murr noted in her email “We spent 10 years in the courts and 4 months in the Wisconsin legislature! Crazy right?”

On another note, Aram Terchunian of First Costal Corporation contacted the author and provided a note of caution. Mr. Terchurian rightly pointed out that Tidal Wetlands – Land Use Regulations contains an automatic merger provision for substandard lots. Indeed, at 6 CRR-NY 661.6 (b) the regulation addresses lots within the wetland jurisdiction that are substandard. Under §661.6 (a)(5) the minimum lot area for lots connected to a community sewage system is 20,000 square feet, and 40,000 square feet is required for lots not connected to a community sewage system. According to the Regulations, substandard lots as defined above “in the same ownership may be treated together as one lot”.

So know that while a property might not merge because of zoning regulations, it may merge because of wetland regulations.

Thank you to both Donna and Aram for their contributions to this blog.

The stakes could not be higher; would the property yield one or two waterfront building lots? On June 23, 2017, the Supreme Court of the United States decided a case that involved the merger of two parcels of property undersized for development purposes that had come into common ownership. In Murr v. Wisconsin, the Murr family who owned the property appealed a Wisconsin Court of Appeals case that upheld the merger of the lots and denied the Murr’s takings complaint. Ultimately, the decision by the Supreme Court upheld the Wisconsin Court of Appeals decision that the lots had merged and must be one lot for development purposes.

At issue were two waterfront parcels of property on the St. Croix River in the Town of Troy, County of St. Croix in the State of Wisconsin. Initially, the Murr’s parents purchased a parcel of property and constructed a cabin for recreational purposes for their family. Title to the property was taken in the name of the family business, William Murr Plumbing, Inc. Three years later, Mr. and Mrs. Murr purchased the adjoining lot as an investment. The lot was titled in the Murrs’ personal names and remained vacant.

Fast forward to 1994 when the Murr parents gifted the property with the cabin to their six children. One year later the Murr parents gifted the vacant lot to their six children. Two of the Murr children transferred their interests in the property to the four remaining siblings who are the Petitioners.

Meanwhile, in 1976, the State of Wisconsin through the Wisconsin Department of Natural Resources was busy developing regulations concerning the development of lots within the St. Croix River area. These regulations provided minimum lot size and area requirements within those lots after considering wetlands, rights-of-way, slopes, and floodplains. Acknowledging the takings issue, the Department included a “grandfather” clause that exempted lots from regulations if they were held in single and separate ownership. Wisconsin law then went a step further and determined that lots that did not meet the zoning requirements and were not single and separate merged by operation of law and resulted in a single building lot.

By transferring the property in 1994 to their children, the Murrs – at least under Wisconsin Law – stripped a vacant lot of its development rights and effectively merged the properties. To their dismay, the Murr children could not separately sell the property; the proceeds of which they intended to use to improve the cabin.

Background

Upon learning of this possible merger the Murr children applied to the St. Croix County Board of Adjustment (“Board”). This application requested – among others – a variance to “sell or use two contiguous lots in common ownership as separate building sites”. After a public hearing, the Board denied the application in a written opinion.

Thereafter the Murrs appealed the Board’s decision to the Wisconsin Circuit Court. The Wisconsin Circuit Court upheld the Board’s decision to deny the request to treat the lots as single and separate but reversed the Board on the individual variance requests. Both parties appealed to the Wisconsin Supreme Court.

In upholding the Circuit Court, the Court of Appeals rejected the fairness argument advanced by the Murrs.  Instead, the Court of Appeals adopted the State of Wisconsin’s argument that grandfathering clauses protected individuals with substandard lots from losing development rights but also protected the environment by merging contiguous properties that come into common ownership.

The Wisconsin Court of Appeals denied a Petition to Review.

After failing in their appeal of the denial of the variance requests the Murrs commenced an action alleging a taking of their property without just compensation.

State Takings Claim

Both Wisconsin State and St. Croix County law is consistent in that substandard abutting lots merge unless they are in separate ownership. Thus, the Murrs’ claim was based upon the theory that the State of Wisconsin and County of St. Croix had committed a regulatory taking when it adopted the law that specifically called for the merger of commonly owned undersized, contiguous property.

Relative to takings claims, Wisconsin law provides that “the property of no person shall be taken for public use without just compensation”. Specifically, the Murrs’asserted that applying Wisconsin law had deprived them of the beneficial use of Lot “E” – the unimproved lot. Because of the merger, the Murrs argued that Lot E was deprived of all beneficial use and all economic value.

In granting the summary judgment application of Wisconsin and St. Croix County, the Wisconsin Circuit Court found that the Murrs had retained a recreational and residential use of the property. Based on a professional appraisal, the court further concluded that the market value of the property had decreased less than 10%.

The Wisconsin Court of Appeals upheld the Circuit Court finding that Lots E and F must be considered as one lot because of the merger and no compensable taking had occurred.

Appeal to the Supreme Court

The Murr’s appealed the Decision to the Supreme Court.

Since 1922 the Supreme Court recognized that a compensable taking can occur where government regulation is so burdensome that it deprives a property owner of all beneficial or productive use of the property.  See Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922).  In Murr, the issue raised on appeal was whether the Supreme Court should consider the Murr lots as merged or as single and separate lots. In other words should the Wisconsin Department of Natural Resources and St Croix County regulations dictating an automatic merger of substandard contiguous lots held in common ownership be upheld?

By upholding the Wisconsin Court of Appeals, the Supreme Court acknowledged that validity of the merger provision. The Court relied on three factors to uphold the merger provision… First, the Court found that the Wisconsin merger provision was adopted for a specific, legitimate purpose; to protect environmentally sensitive property. Second, the Court found that the Murrs should have expected heightened regulation because of the properties location in an environmentally sensitive area as well as the fact the properties shared a long contiguous border. Finally, the Court observed a lack of financial impact demonstrated by the fact that the property as combined retained 90% of its value.

In the Town of Southampton, the Murr decision should have little impact. Contrary to Wisconsin and St. Croix County, the Southampton Town Zoning Code has no automatic merger provision for substandard contiguous lots held in common ownership. Rather, the Code states that a substandard property is entitled to a building permit if it can demonstrate that it is single and separate from surrounding lots. Single and separate status can be proven through a title company analysis of surrounding lots or a determination of the Zoning Board of Appeals.

Local Application

If a substandard lot is held in common ownership and contiguous, an application can be made to the Zoning Board in Southampton to determine if the lot is entitled to single and separate status. In an application for a determination of single and separate status, the Board will undertake an analysis to decide whether the lots maintained separate identities or if one lot was held to benefit another. Through a series of decisions, the Board has developed a test to analyze single and separate applications on a case by case basis.

For other jurisdictions, a property owner must look closely at the zoning law to determine how that jurisdiction treats substandard contiguous lots held in common ownership. Keen vigilance in this area of law is the only way to avoid the fate of the Murrs and lose the right to develop a waterfront lot.